Restraints of Trade and Dominance in Singapore: Overview
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InfoPAKSM
Restraints of Trade and Dominance in
Singapore: Overview
Sponsored by:
Association of Corporate Counsel
Association of Corporate Counsel
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www.acc.com2 Restraints of Trade and Dominance in Singapore: Overview
Restraints of Trade and Dominance in
Singapore: Overview
June 2017
Provided by the Association of Corporate Counsel
1025 Connecticut Avenue, NW, Suite 200
Washington, DC 20036
tel +1 202.293.4103
fax +1 202.293.4107
www.acc.com
This InfoPAKSM gives a succinct overview of restraints of trade, monopolies and abuses of
market power in Singapore. In particular, it covers the regulatory authorities and the
regulatory framework, the scope of rules, exemptions, exclusions, statutes of limitation,
notification, investigations, penalties and enforcement, third party damages claims, EU law,
joint ventures and proposals for reform.
This Q&A is part of the global guide to competition and cartel leniency. For a full list of
jurisdictional Restraints of Trade and Dominance Q&As visit
www.practicallaw.com/restraintsoftrade-guide. For a full list of jurisdictional Merger
Control Q&As visit www.practicallaw.com/mergercontrol-guide.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of
leniency and immunity, the applicable procedure and the regulatory authorities in multiple
jurisdictions, visit www.practicallaw.com/leniency-guide.3
Contents
I. Restraints of Trade ........................................................................................................................... 5
A. Scope of Rules .......................................................................................................................................................................... 5
B. Exemptions ................................................................................................................................................................................ 6
C. Exclusions and Statutes of Limitation .................................................................................................................................. 6
D. Notification................................................................................................................................................................................ 7
E. Investigations ............................................................................................................................................................................. 8
F. Publicity and Confidentiality ................................................................................................................................................10
G. Settlements ..............................................................................................................................................................................12
H. Penalties and Enforcement...................................................................................................................................................13
I. Third Party Damages Claims and Appeals .......................................................................................................................15
II. Monopolies and Abuses of Market Power .................................................................................... 16
A. Scope of Rules ........................................................................................................................................................................16
B. Exemptions and Exclusions ..................................................................................................................................................18
C. Notification..............................................................................................................................................................................18
D. Investigations ...........................................................................................................................................................................19
E. Penalties and Enforcement...................................................................................................................................................19
F. Third Party Damages Claims ...............................................................................................................................................19
III EU Law............................................................................................................................................. 20
A. Are There Any Differences Between the Powers of the National Regulatory Authority(ies) and Courts in
Relation to Cases Dealt with under Article 101 and/or Article 102 of the TFEU, and Those Dealt with
Only under National Law. ....................................................................................................................................................20
IV. Joint Ventures ................................................................................................................................. 20
A. How Are Joint Ventures Analysed under Competition Law? .....................................................................................20
V. Inter-Agency Co-Operation .......................................................................................................... 21
A. Does the Regulatory Authority in Your Jurisdiction Co-Operate with Regulatory Authorities in Other
Jurisdictions in Relation to Infringements of Competition Law? If So, What Is the Legal Basis for and Extent
of Co-Operation (in Particular, in Relation to the Exchange of Information)? .......................................................21
VI. Recent Cases and Trends .............................................................................................................. 21
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A. What Are the Recent Developments, Trends or Notable Recent Cases Concerning Abuse of Market
Power? ......................................................................................................................................................................................21
VII. Proposals for Reform ..................................................................................................................... 22
A. Are There Any Proposals for Reform Concerning Restrictive Agreements and Market Dominance? .............22
VIII. Online Resources ............................................................................................................................ 22
A. Singapore Statues Online .....................................................................................................................................................22
B. Competition Commission of Singapore (CCS) ...............................................................................................................23
IX. The Regulatory Authority ............................................................................................................. 23
A. Competition Commission of Singapore (CCS) ...............................................................................................................23
X. About the Authors ......................................................................................................................... 24
A. Daren Shiau, Partner .............................................................................................................................................................24
B. Elsa Chen, Partner (Chief Economist)...............................................................................................................................25
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel5
I. Restraints of Trade
A. Scope of Rules
1. Are Restrictive Agreements and Practices Regulated? If So, What Are the
Substantive Provisions and Regulatory Authority?
a. Regulatory Framework
Section 34 of the Competition Act (Chapter 50B of Singapore) (Competition Act) prohibits
agreements between undertakings, decisions by associations of undertakings or concerted
practices, which have as their object or effect the prevention, restriction or distortion of
competition within Singapore (Section 34 Prohibition).
The Section 34 Prohibition also applies to agreements made outside Singapore, or where
parties to the agreement are outside Singapore, if the agreement has the object or effect of
preventing, restricting or distorting competition within Singapore.
Directly or indirectly fixing prices, bid-rigging, sharing of markets, and limiting or
controlling production and investment (that is, hardcore prohibitions) are considered to be
illegal. However, other agreements (for example, the sharing of information, and restricting
advertising) are subject to the rule of reason.
Paragraphs 5, 6 and 7 of the Third Schedule to the Competition Act exclude, from the
Section 34 Prohibition, agreements relating to:
■ Any good or services which falls under the jurisdiction of another regulatory
authority relating to competition, as stated under any other written law or code
of practice. These industries include electricity, gas, telecommunications, and
auxiliary police.
■ Specified activities, relating to the supply of postal services, piped potable water,
wastewater management services, bus and rail services, and cargo terminal
operations.
■ Specified clearing houses activities relating to the Automated Clearing House.
b. Regulatory Authority
The relevant authority in Singapore is the Competition Commission of Singapore.
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2. Do the Regulations Only Apply to Formal Agreements or Can They Apply
to Informal Practices?
Agreements caught under section 34 of the Competition Act (Chapter 50B of Singapore) can
range from hard-core cartels to concerted practices where no formal agreement or decision
was reached. These include formal, informal and oral agreements, as well as "gentlemen's
agreements". All that is required is that parties agree on the actions each party will, or will
not, take.
B. Exemptions
1. Are There Any Exemptions? If So, What Are the Criteria for Individual
Exemption and Any Applicable Block Exemptions?
The Minister for Trade and Industry, acting on a recommendation of the Competition
Commission of Singapore can order the exemption of categories of agreements from the
prohibition under section 34 of the Competition Act (Chapter 50B of Singapore) (Section 34
Prohibition). Exempted agreements must contribute to either:
■ Improving production or distribution.
■ Promoting technical or economic progress, in order to meet the criteria for a
block exemption.
On 14 July 2006, the Minister for Trade and Industry issued the Competition (Block
Exemption for Liner Shipping Agreements) Order, which exempted a category of liner
shipping agreements from the Section 34 Prohibition until 31 December 2010. This was
subsequently extended until 31 December 2020.
C. Exclusions and Statutes of Limitation
1. Are There Any Exclusions? Are There Statutes of Limitation Associated
with Restrictive Agreements and Practices?
a. Exclusions
The Third Schedule in the Competition Act sets out exclusions to the prohibition under
section 34 of the Competition Act (Section 34 Prohibition), including, but not limited to:
■ An agreement made to comply with a legal requirement.
■ Specified activities within the supply of postal services, supply of public
transport, cargo terminal operations and so on.
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■ Vertical agreements.
■ Agreements with net economic benefits.
■ Agreements directly related and necessary to the implementation of mergers,
including ancillary restrictions (such as, non-compete clauses).
As Singapore is a small and open economy, an agreement will generally have no
appreciable adverse effect on competition in one of the following circumstances:
■ If the aggregate market share of the parties to the agreement does not exceed
20% on any of the relevant markets affected by the agreement, where the
agreement is made between competing undertakings (that is, undertakings,
which are actual or potential competitors on any of the markets concerned).
■ If the market share of each of the parties to the agreement does not exceed 25%
on any of the relevant markets affected by the agreement, where the agreement is
made between non-competing undertakings (that is, undertakings, which are
neither actual nor potential competitors on any of the markets concerned).
■ In the case of an agreement between undertakings, where each undertaking is a
small or medium enterprise (SME).
However, directly or indirectly fixing prices, bid-rigging, sharing of markets, and limiting
or controlling production and investment (that is, hardcore prohibitions) will always have
an appreciable adverse effect on competition, even if the market share of the parties are
below the above threshold levels, and even if the parties to these agreements are SMEs.
b. Statutes of Limitation
Any provision of an agreement entered into before 1 January 2006 is void and
unenforceable if it infringes the Section 34 Prohibition on or after 1 January 2006. Any
provision of an agreement entered into on or after 1 January 2006 is void and unenforceable
if it infringes the Section 34 Prohibition.
D. Notification
1. What Are the Notification Requirements for Restrictive Agreements and
Practices?
a. Notification
There is no requirement for undertakings to notify agreements to the Competition
Commission of Singapore (CCS). It is for the parties to an agreement to ensure that their
agreements are lawful and decide whether it is appropriate to make a notification for
guidance or decision.
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b. Informal Guidance/Opinion
Parties to an agreement can make a notification to seek guidance from the CCS on whether
an agreement would be likely to infringe the prohibition under section 34 of the
Competition Act (Section 34 Prohibition).
c Responsibility for Notification
Parties to an agreement can make a notification for guidance or decision in the event that
the undertaking is unsure of whether an agreement is likely to infringe the Section 34
Prohibition.
d. Relevant Authority
Requests for guidance or decision should be made to the CCS.
e. Form of Notification
The relevant forms of notification are Form 1 and Form 2 in Appendix A of the CCS
Guidelines on Filing Notifications for Guidance or Decision. An applicant submitting Form
1 can also submit Form 2 to the CCS at the same time, but should note that the information
required by Form 2 is more detailed and may not be required in all cases. Concurrent
submission of both forms will speed up the process in more complex cases.
f. Filing Fee
The filing fees payable by the undertakings are:
■ For a notification for guidance: an initial fee of SGD3,000 and a further fee of
SGD20,000.
■ For a notification for decision: an initial fee of SGD5,000 and a further fee of
SGD40,000.
E. Investigations
1. Who Can Start an Investigation into a Restrictive Agreement or Practice?
a. Regulators
The Competition Act provides that the Competition Commission of Singapore (CCS) can
conduct an investigation if there are reasonable grounds for suspecting that the prohibition
under section 34 of the Competition Act has been infringed.
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An investigation may be initiated by intelligence gathered by the CCS through its own
horizon-scanning (for example, market studies), leniency applicants, whistle-blowers,
complainants, or information from other government agencies.
The CCS can also enter into any agreement with any regulatory authority for the purposes
of facilitating co-operation between it and the regulatory authority in the performance of
their respective functions, if they relate to issues of competition between undertakings.
b. Third Parties
Third parties can make a complaint to the CCS to prompt the start of an investigation. The
complaint form can be found at: www.ccs.gov.sg/working-with-ccs/making-
complaints/~/media/custom/ccs/files/working%20with%20ccs/making%20complaints/f
ile%20a%20complaint/ccs20complaintform.ashx, and can be submitted to the CCS through
its website, by email, by post or by fax.
The CCS will check that the complaint falls within its scope of powers under the
Competition Act and if so, further information can be requested. If the complaint cannot be
substantiated, the matter will be closed, and the CCS will inform the complainant that they
do not propose to take any action. If the subject matter is beyond the CCS' jurisdiction, it
can be redirected to the relevant agency.
If the complaint can be substantiated with the relevant information, the CCS will evaluate
and assess whether the agreement, conduct, anticipated merger or merger complained
about is likely to have an appreciable adverse effect on competition.
The CCS can launch a formal investigation if there are reasonable grounds for suspecting
that competition law has been breached by the agreement, conduct or merger (or in the case
of anticipated mergers, will be breached if the merger is carried into effect). In deciding
whether to launch a formal investigation, the CCS will also take into account its strategic
priorities and merits of the case.
2. What Rights (if Any) Does a Complainant or Other Third Party Have to
Make Representations, Access Documents or Be Heard During the Course
of an Investigation?
a. Representations
Third parties including the complainant have no right to access documents, make
representations or be heard during the course of an investigation.
b. Document Access
See above, Representations.
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c. Be Heard
See above, Representations.
3. What Are the Stages of the Investigation and Timetable?
The time taken by Competition Commission of Singapore (CCS) to investigate will depend
very much on the nature and complexity of the investigation. There is no specified
timeframe for the CCS to respond to a complaint or to conclude its investigation. However,
the CCS will acknowledge the complaint made within three working days, and keep the
complainant posted on the outcome of the complaint.
Where the CCS proposes to make a decision that the prohibition under section 34 of the
Competition Act (Section 34 Prohibition) has been infringed by any agreement, it must give
written notice to the person likely to be affected by the decision, and give the person an
opportunity to make representations (section 68, Competition Act). These representations
include written and oral representations. The CCS will also grant the defendants access to
the CCS' inspection files. After considering any representations made to the CCS, the CCS
decides if the Section 34 Prohibition has been infringed by any agreement.
F. Publicity and Confidentiality
1. How Much Information Is Made Publicly Available Concerning Investigations
into Potentially Restrictive Agreements or Practices? Is Any Information
Made Automatically Confidential and Is Confidentiality Available on
Request?
a. Publicity
For notifications for decisions, the non-confidential versions of Form 1 and Form 2 and their
supporting documents, or any information within them, can be shared with third parties.
The Competition Commission of Singapore (CCS) will also generally publish the
notification in the public register on its website, together with a summary of the proposed
agreement provided by the notifying parties, to solicit third parties views. Once the CCS
has issued its decision, the CCS will also publish a non-confidential version of its decision
in the public register on its website.
Notifications for guidance are generally treated as confidential by the CCS. However, the
CCS can consult with third parties to assist it with the application more effectively. The
CCS generally does not publish the notification, the non-confidential version of the
application or the guidance issued on its public register.
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With respect to investigations, if an investigation commenced by the CCS or leniency
application made to the CCS does not result in a finding of infringement, the CCS' current
approach is not to publicise details of the investigation or leniency application. The CCS'
current approach is only to publish a media release when a proposed infringement decision
is issued, at which time the identities of the parties involved will be revealed.
b. Automatic Confidentiality
The CCS will endeavour to keep the identity of immunity or leniency applicants
confidential throughout the course of its investigation, to the extent consistent with its
obligations to disclose or exchange information. The CCS has not, in its practice to-date,
identified any leniency applicants publicly while investigations have been ongoing. The
CCS can request for a waiver of confidentiality from leniency applicants to communicate
with other competition or regulatory authorities in other jurisdictions where the applicant
has also sought leniency.
All other information is subject to confidentiality requests to be made to the CCS (see
below).
c. Confidentiality on Request
Where there is information which, if disclosed could significantly harm the undertaking to
which it relates, immunity or leniency applicants, or other co-operating parties, can request
that the CCS treat it as confidential. The CCS must preserve the secrecy of information that
has been identified as confidential to the CCS (section 89(1), Competition Act).
However, there are certain circumstances under which the CCS can disclose information
that has been identified as confidential to the CCS:
■ Where the consent of the person to whom the information relates has been
obtained.
■ To enable a prosecution under the Competition Act.
■ To enable the CCS to give effect to any provision of the Competition Act.
However, this is subject to the CCS having regard to considerations, such as:
• the extent to which the disclosure is necessary for the purposes for which
the CCS is proposing to make the disclosure; and
• the need for excluding, as far as practicable, commercial information, the
disclosure of which would, or might, significantly harm the legitimate
business interests of the undertaking to which it relates.
■ To enable the CCS to investigate a suspected offence under the Competition Act
or to enforce a provision of it.
■ To comply with a provision of an agreement between Singapore and a country or
territory outside Singapore, as may be prescribed, where the foreign country
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undertakes to keep the information given confidential at all times (among other
conditions).
2. What Are the Powers (if Any) That the Relevant Regulator Has to
Investigate Potentially Restrictive Agreements or Practices?
The Competition Commission of Singapore has powers to:
■ Require the production of specified documents or specified information.
■ Enter premises without a warrant.
■ Enter and search premises with a warrant.
G. Settlements
1. Can the Parties Reach Settlements with Regulators to Bring an Early
Resolution to an Investigation? If So, What Are the Circumstances for
Doing So and the Applicable Procedure?
The CCS has implemented a new fast track procedure since 1 December 2016 to expedite
the investigative process for Section 34 and Section 47 infringements under the Competition
Act.
The fast track procedure can be initiated by the CCS at its own discretion, taking into
account certain factors such as:
■ Whether party(ies) have proactively indicated their willingness to engage in the
fast track procedure.
■ Foreseeable divergences in party(ies)' relative positions.
■ The possibility of party(ies) contradicting positions.
■ Predicted margins for argument.
■ The extent to which facts may be contested.
To implement the fast track procedure, all party(ies) under investigation in a case must
unanimously indicate to the CCS, an interest or willingness to utilise the fast track
procedure before discussions may commence. Each party must also unequivocally admit
liability to the infringement based on an agreed set of facts.
Party(ies) will benefit from a 10% reduction in financial penalties under the fast track
procedure.
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel13
2. Can the Regulator Accept Remedies (Commitments) from the Parties to
Address Competition Concerns Without Reaching an Infringement
Decision? If So, What Are the Circumstances for Doing So and the
Applicable Procedure?
There is currently no formal process for the Competition Commission of Singapore to
accept remedies from parties to address competition concerns without reaching an
infringement decision.
H. Penalties and Enforcement
1. What Are the Regulator's Enforcement Powers in Relation to a Prohibited
Restrictive Agreement or Practice?
a. Orders
The Competition Commission of Singapore (CCS) can impose directions, which can require
the relevant undertaking(s) concerned to modify the agreement, or to terminate the
agreement in question. Directions can require positive action, such as informing third
parties that an infringement has been brought to an end or reporting back periodically to
the CCS on certain matters, or structural changes.
b. Fines
A financial penalty of up to 10% of turnover of the business of the undertaking in
Singapore, for each year of infringement and up to a maximum of three years, can be
imposed for an infringement of the prohibition in section 34 of the Competition Act,
committed intentionally or negligently.
If a direction is not complied with (including directions for payment of financial penalties),
the CCS can apply to register the direction with a district court (Chapter 322, Rule 5, Rules
of Court). Any person who fails to comply with a registered direction without reasonable
excuse will be in contempt of court and normal sanctions for contempt of court will apply
(that is, a fine or imprisonment).
If the participating company(ies) fail to pay in full the financial penalty or any instalment of
the financial penalty by the date on which its payment is due, they are liable to pay interest,
calculated on a monthly basis, on the outstanding amount of the financial penalty or
instalment at the rate of 6%, for so long as the outstanding amount of the financial penalty
or instalment remains unpaid.
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c. Personal Liability
There is no personal liability, except if individuals commit the following offences:
■ Knowingly or recklessly providing information that is false or misleading either
to the CCS or to another person such as an employee or legal adviser, in the
knowledge that it will be used for the purpose of providing information to the
CCS.
■ Obstructing, by refusing to give access to, assaulting, hindering or delaying, any
agent of the CCS.
■ Failing to comply with any requirement imposed under sections 61A, 63, 64 or 65
of the Competition Act (which set out the CCS' formal powers of investigation),
including refusal to provide any required document or information, unless such
compliance is reasonably not practicable or a reasonable excuse for failing to
comply can be provided.
■ Intentionally or recklessly destroying or otherwise disposing of or falsifying or
concealing a document of which production has been required under sections
61A, 63, 64 or 65 of the Competition Act, or causing or permitting its destruction,
disposal, falsification or concealment.
d. Immunity/Leniency
There is a leniency programme where applicants can qualify for a reduction of financial
penalties.
An applicant stands to benefit from total immunity from financial penalties, if both:
■ The applicant is the first in line to provide the CCS with evidence of the cartel
activity before an investigation has commenced.
■ The CCS does not already have sufficient information to establish the existence of
the alleged cartel activity, amongst other conditions.
If an applicant does not qualify for total immunity because the CCS has already
commenced an investigation, it can still stand to benefit from a reduction in the financial
penalty of up to 100 %, if amongst other conditions both:
■ The applicant is still the first to provide the CCS with evidence of the cartel
activity.
■ This information is provided before the CCS has sufficient information to issue a
proposed infringement decision.
If an applicant is not the first in line, but provides useful evidence before the CCS issues a
proposed infringement decision, the applicant can still be granted a reduction of up to 50%
of the financial penalty.
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel15
Initiators and coercers within a cartel cannot qualify for total immunity and can only benefit
from a reduction of up to 50%.
CCS's leniency policy and the fast track procedure (see Section I.F.2) are not mutually
exclusive, and it is possible for a leniency applicant to benefit from reductions arising from
both the leniency policy and the fast track procedure.
e. Impact on Agreements
See above, Orders.
I. Third Party Damages Claims and Appeals
1. Can Third Parties Claim Damages for Losses Suffered as a Result of a
Prohibited Restrictive Agreement or Practice? If So, What Special
Procedures or Rules (if Any) Apply? Are Collective/Class Actions Possible?
a. Third Party Damages
Parties suffering loss or damage directly arising from an infringement of a prohibition
under section 34 of the Competition Act (Section 34 Prohibition) can commence a civil
action against the infringing undertaking seeking relief.
b. Special Procedures/Rules
These rights of private action can only be exercised after the Competition Commission of
Singapore has determined that an undertaking has infringed the Section 34 Prohibition, and
after the appeal process has been exhausted.
There is a two year limitation period for making private actions, which commences from
the time that the CCS made the decision or from the determination of the appeal, whichever
is later.
The court will be bound by the relevant infringement decisions.
c. Collective/Class Actions
The class action regime does not exist in Singapore and the only process available for
collective redress is through a representative action, which enables a representative party to
bring a claim on behalf of all others having the ‘same interest’ in the proceedings.
2. Is There a Right of Appeal Against Any Decision of the Regulator? If So,
Which Decisions, to Which Body and Within Which Time Limits? Are
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Rights of Appeal Available to Third Parties, or Only to the Parties to the
Agreement or Practice?
a. Rights of Appeal and Procedure
Any party to an agreement can appeal a decision of the Competition Commission of
Singapore (CCS) to the Competition Appeal Board (CAB).
The notice of appeal must be within two months of the date on which the appellant was
notified of the contested decision or the date of publication of the decision, whichever is
earlier.
b. Third Party Rights of Appeal
There are no third party rights of appeal against a CCS decision.
II. Monopolies and Abuses of Market Power
A. Scope of Rules
1. Are Monopolies and Abuses of Market Power Regulated under
Administrative and/or Criminal Law? If So, What Are the Substantive
Provisions and Regulatory Authority?
a. Regulatory Framework
Section 47 of the Competition Act prohibits any conduct on the part of one or more
undertakings, which is an abuse of a dominant position, in any market in Singapore
(Section 47 Prohibition).
The Section 47 Prohibition also applies to an undertaking outside Singapore that carries out
actions that make up an abuse of a dominant position in any market in Singapore. The
Section 47 Prohibition will apply where the conduct is engaged by entities that form a
single economic unit, where the single economic unit is dominant in a relevant market.
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel17
The exclusions in paragraphs 5, 6 and 7 of the Third Schedule to the Competition Act also
apply to the Section 47 Prohibition (see Section I.A.1.a).
b. Regulatory Authority
The relevant authority in Singapore is the Competition Commission of Singapore.
2. How Is Dominance/Market Power Determined?
An undertaking will not be deemed dominant unless it has substantial market power. In
assessing whether an undertaking is dominant, the extent to which there are constraints on
its ability to profitably sustain prices above competitive levels will be considered. These
constraints include:
■ Existing competitors: the market shares of competitors in the relevant market are
one measure of the competitive constraints from existing competitors.
■ Potential competitors: the strength of potential competition is affected by barriers
to entry.
■ Other factors, such as the existence of powerful buyers and economic regulation.
Generally, as a starting point, the Competition Commission of Singapore will consider a
market share above 60% as likely to indicate that an undertaking is dominant in the
relevant market. Other factors, where relevant, may be considered in determining if an
undertaking is dominant. Similarly, dominance could potentially be established as a lower
market share, if other relevant factors provided strong evidence of dominance.
3. Are There Any Broad Categories of Behaviour That May Constitute
Abusive Conduct?
The Competition Act provides an illustrative list of what [may constitute abusive conduct,
such as:
■ Predatory behaviour towards competitors.
■ Limiting production, markets, or technical development to the prejudice of
consumers.
■ Applying dissimilar conditions to equivalent transactions with other trading
parties, thereby placing them at a competitive disadvantage.
■ Making the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial
usage, have no connection with the subject of the contracts.
Other categories of conduct that can amount to an abuse include, but are not limited to:
■ Pricing below cost.
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■ Certain discount schemes.
■ Certain cases of price discrimination.
■ Margin squeezes.
■ Vertical restraints.
■ Exclusive purchasing agreements.
■ Refusal to supply.
■ Refusal to allow access to an essential facility.
B. Exemptions and Exclusions
1. Are There Any Exemptions or Exclusions?
There is no block exemption regime applicable to the prohibition in section 47 of the
Competition Act (Section 47 Prohibition).
The Third Schedule in the Competition Act sets out exclusions to the Section 47 Prohibition,
including, but not limited to:
■ An undertaking entrusted with the operation of services of general economic
interest with the character of a revenue-producing monopoly, insofar as the
prohibition would obstruct the performance, in law or in fact, of the particular
tasks assigned to that undertaking.
■ Conduct necessary to comply with a legal requirement.
■ Conduct, which is necessary for exceptional and compelling reasons of public
policy and which is also the subject of an order by the Minister for Trade and
Industry.
C. Notification
1. Is It Necessary (or, if not Necessary, Possible/Advisable) to Notify the
Conduct to Obtain Clearance or (Formal or Informal) Guidance from the
Regulator? If So, What Is the Applicable Procedure?
There is no requirement for undertakings to notify conduct to the Competition Commission
of Singapore. It is for an undertaking to ensure that its conduct is lawful and to decide
whether it is appropriate to make a notification for guidance or decision.
See Section I.D.1 for the applicable procedure for notification.
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D. Investigations
1. What (if Any) Procedural Differences Are There Between Investigations
into Monopolies and Abuses of Market Power and Investigations into
Restrictive Agreements and Practices?
There are no procedural differences between investigations into monopolies and abuses of
market power and investigations into restrictive agreements and practices.
2. What Are the Regulator’s Powers of Investigation?
See Section I.F.2.
E. Penalties and Enforcement
1. What Are the Penalties for Abuse of Market Power and What Orders Can
the Regulator Make?
See Section I.H.1. The Competition Commission of Singapore leniency programme does not
apply to the prohibition under section 47 of the Competition Act (Section 47 Prohibition).
The fast track procedure (see Section I.F.2) applies to the Section 47 Prohibition.
F. Third Party Damages Claims
1. Can Third Parties Claim Damages for Losses Suffered as a Result of Abuse
of Market Power? If So, What Special Procedures or Rules (if Any) Apply?
Are Collective/Class Actions Possible?
a. Third Party Damages
See Section I.I.1.a.
b. Special Procedures/Rules
See Section I.I.1.b.
c. Collective/Class Actions
See Section I.I.1.c.
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III EU Law
A. Are There Any Differences Between the Powers of the National
Regulatory Authority(ies) and Courts in Relation to Cases Dealt
with under Article 101 and/or Article 102 of the TFEU, and Those
Dealt with Only under National Law.
There are no differences between the powers of the national regulatory authority(ies) and
courts in relation to cases dealt with under Article 101 and/or Article 102 of the TFEU.
IV. Joint Ventures
A. How Are Joint Ventures Analysed under Competition Law?
A joint venture is subject to the prohibitions under sections 34 and 47 of the Competition
Act, except where it qualifies as a full-function joint venture, which would fall within the
merger control regime under section 54 of the Competition Act.
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel21
V. Inter-Agency Co-Operation
A. Does the Regulatory Authority in Your Jurisdiction Co-Operate
with Regulatory Authorities in Other Jurisdictions in Relation to
Infringements of Competition Law? If So, What Is the Legal Basis
for and Extent of Co-Operation (in Particular, in Relation to the
Exchange of Information)?
Under the Competition Act, the Competition Commission of Singapore (CCS) (with the
approval of the Minister for Trade and Industry) can enter into arrangements with any
foreign competition body, whereby each party to the arrangement can provide the other
party with information in its possession, if the information is required by that other party to
perform any of its functions. The CCS can also provide any other assistance to the other
party that will facilitate the performance of any of its functions.
VI. Recent Cases and Trends
A. What Are the Recent Developments, Trends or Notable Recent
Cases Concerning Abuse of Market Power?
The Competition Commission of Singapore (CCS) issued an infringement decision in 2010
against SISTIC.com Pte Ltd (SISTIC) for abusing its dominant position. Specifically, the CCS
found that SISTIC had violated the prohibition under section 47 of the Competition Act by
entering into series of exclusive agreements, which contained explicit restrictions requiring
two venues and 17 event promoters concerned to use SISTIC as the sole ticketing service
provider for all their events. The financial penalty imposed was SGD989,000.
Following an appeal by SISTIC to the Competition Appeal Board (CAB), the CAB upheld
the CCS' decision in 2012. CAB found that SISTIC has failed in its appeal on the issues of
dominance and abuse of dominance, but varied the quantum of the financial penalty to
SGD769,000.
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VII. Proposals for Reform
A. Are There Any Proposals for Reform Concerning Restrictive
Agreements and Market Dominance?
On 1 November 2016, the Competition Commission of Singapore (CCS) published revised
guidelines on how it administers and enforces the Competition Act., which came into force
on 1 December 2016. The changes include amendments to the:
■ CCS Guidelines on Lenient Treatment for Undertakings Coming Forward with
Information on Cartel Activity.
■ CCS Guidelines on the Section 34 Prohibition.
■ CCS Guidelines on the Section 47 Prohibition.
■ CCS Guidelines on Filing Notifications for Guidance or Decision with respect to
the Section 34 Prohibition and Section 47 Prohibition.
■ CCS Guidelines on the Appropriate Amount of Penalty.
■ CCS Guidelines on the Powers of Investigation.
■ CCS Guidelines on Enforcement.
■ CCS Guidelines on Major Prohibitions.
In addition, the CCS Practice Statement on the Fast Track Procedure for Section 34 and
Section 47 Cases was concurrently enacted.
VIII.Online Resources
A. Singapore Statues Online
W http://statutes.agc.gov.sg/
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel23
Description. Singapore Statutes Online is the official website for Singapore's legislation,
and is managed by the Legislation Division of the Attorney-General's Chambers of
Singapore.
B. Competition Commission of Singapore (CCS)
W https://www.ccs.gov.sg
Description. This is the official, up-to-date website of the CCS, which contains the CCS
guidelines (including merger controls) and a public register providing information relating
to decisions, directions and certain notices by CCS.
IX. The Regulatory Authority
A. Competition Commission of Singapore (CCS)
T +65 6325 8206
E ccs_feedback@ccs.gov.sg
Outline structure.
The CCS comprises of the following six divisions:
■ Business and Economics Division.
■ Corporate Affairs Division.
■ Legal Division.
■ Enforcement Division.
■ Policy and Markets Division.
■ International & Strategic Planning Division.
Responsibilities.
The function and duties of the CCS are as follows:
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■ To maintain and enhance efficient market conduct and promote overall
productivity, innovation and competitiveness of markets in Singapore.
■ To eliminate or control practices having adverse effect on competition in
Singapore.
■ To promote and sustain competition in markets in Singapore.
■ To promote a strong competitive culture and environment throughout the
economy in Singapore.
■ To act internationally as the national body representative of Singapore in respect
of competition matters.
■ To advise the Government or other public authority on national needs and
policies in respect of competition matters.
X. About the Authors
A. Daren Shiau, Partner
Allen & Gledhill LLP
T +65 6890 7612
F +65 6302 3037
E daren.shiau@allenandgledhill.com
W www.allenandgledhill.com
Professional qualifications. England and Wales, Solicitor (non-practising); Central
Singapore District, District Councillor
Areas of practice. Competition; anti-trust.
Non-professional qualifications. Principal Examiner (competition law) Singapore, Institute
of Legal Education's Foreign Practitioners Examinations; Lecturer, Part B of the Singapore
Bar Examinations; Law (graduated on the Dean's list) National University of Singapore
Copyright © 2017 Practical Law Company (PLC) & Association of Corporate Counsel25
Recent transactions
Daren has successfully advised on a significant majority of Singapore's public competition
law cases, including:
■ Thomson Reuters.
■ Holcim/Lafarge.
■ Glencore/Chemoil.
■ Volkswagen/MAN.
■ Johnson & Johnson/Synthes.
■ Western Digital/Sandisk.
■ Nippon Steel/Sumitomo Metal.
Languages. English.
Professional associations/memberships. Competition Roundtable of the Competition
Commission of Singapore; International Competition Network (non-governmental advisor).
Publications.
■ Practical Law Company (Multi-jurisdictional) Headline Developments.
■ Practical Law Company, Competition: Singapore International Joint Ventures.
■ IBA Antitrust Committee Newsletter, Update on Singapore Competition Law.
■ Global Competition Litigation Review, Private Enforcement of Competition Law
in Singapore – Approaches and Risks for Claimants and Defendant.
B. Elsa Chen, Partner (Chief Economist)
Allen & Gledhill LLP
T +65 6890 7663
F +65 6302 3053
E elsa.chen@allenandgledhill.com
W www.allenandgledhill.com
Areas of practice. Competition; anti-trust; public policy.
Non-professional qualifications. Economics and International Relations (Dean's list), Tufts
University, Massachusetts; MSc, London School of Economics and Political Science; LLM
(specialisation in Competition Law), University of London; featured in Women in Antitrust,
Global Competition Review (GCR), 2013 and 2016
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Recent transactions.
■ Elsa regularly assists clients on complex anti-trust matters, including global
cartel and abuse of dominance investigations, such as:
■ The first and only provisional infringement decision of the Competition
Commission of Singapore (CCS) to be successfully overturned (Greif/GEP).
■ The first CCS conditional merger clearance requiring local commitments
(SEEK/JobStreet).
Languages. English.
Publications.
■ The Changing Landscape of ASEAN Merger Control (LexisNexis).
■ IBA Antitrust Committee Newsletter, Update on Singapore Competition Law
■ Leniency Regime 5th Edition, European Lawyer Reference Series (Thomson
Reuters).
■ Private Enforcement of Competition Law in Singapore, Approaches and Risks
for Claimants and Defendant (Global Competition Litigation Review).
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